Feds have no choice but to tell Kinder Morgan no

Authors

Dyna TuytelLawyer

Karen CampbellLawyer

Regardless of NEB recommendation, federal government cannot approve project and live up to promises

The National Energy Board (NEB) is set to release its recommendation on Kinder Morgan’s controversial application for the Trans Mountain Pipeline Expansion Project later today, and like many others awaiting the Board’s final report, we expect the outcome will leave us disappointed.

Our cynicism does not come without experience. In recent years, Ecojustice lawyers have represented environmental interests during most of the major pipeline project reviews in Canada, and have been disappointed time and time again.

We have been involved in the reviews for Enbridge’s Northern Gateway pipeline, Enbridge’s Line 9 reversal and Kinder Morgan’s Trans Mountain pipeline expansion, and we plan to participate in the review for TransCanada’s Energy East pipeline. We know pipelines, and we know how their review processes stack up. Generally speaking, they have gone from bad to worse — but that’s a tale for another day.

With the number of gaps and deficiencies in its application, Kinder Morgan’s pipeline plan should never have seen the light of day, let alone be considered for final approval by a federal government that has promised to combat climate change and improve environmental assessments. Proving the old adage that it is quality, not quantity that matters, the company’s 15,000-page application failed to provide information that sufficiently evaluates the project’s many risks, including its effects on endangered Southern Resident Killer Whales, threats to people and communities in the region, and the potential impacts of a major oil spill in the Fraser River or the Salish Sea. We’ll know soon the extent to which these deficiencies are captured in the Board’s final report, but it is a certainty that climate change, the proverbial elephant in the room during these pipeline reviews, will barely register.

And how could it? Climate change was entirely excluded from the Board’s scope of review, and appeared to be excluded from the approval process altogether until the newly-formed federal government tacked on some degree of climate consideration with the introduction of its interim environmental assessment measures in January 2016.

While the measures are a welcome start, the prescribed ‘climate test’ misses half the picture. Only upstream greenhouse gas emissions will be assessed; downstream emissions will not be considered — despite the fact they account for the majority of this project’s climate impact. And even the analysis of upstream emissions is flawed. Based on the first draft climate assessment for another pipeline (Enbridge Line 3) the test fails to consider projects in the context of Canada’s national commitments and underestimates projects’ climate effects. We will have to wait until late May, after the NEB’s recommendation, to see the results of Kinder Morgan’s climate assessment.

While details of the interim measures continue to emerge slowly, it remains unclear whether or how the climate assessment, done outside the NEB’s review by Environment Canada, will factor into Cabinet’s final decision. The best case is that this climate assessment will lead to a decision to not approve the pipeline expansion; the worst case is that it is meaningless and amounts to window dressing before a final approval. Time will tell.

These half measures and unanswered questions are particularly disturbing when you consider that Prime Minister Justin Trudeau and his ministers swept into office with bold promises to take action on climate change and restore faith in Canada’s battered environmental assessment process. To his credit, Trudeau has since committed to, and signed, the Paris Agreement, which aims to limit global warming to 1.5 degrees above pre-industrial levels. However, the inadequacy of his government’s interim measures suggest that Trudeau’s pledges might be just that: All talk, and no action.

We’re bracing for disappointment later today, but let’s not forget that the NEB’s recommendation on Kinder Morgan’s pipeline is not the final word on the matter. When the Harper government gutted Canada’s environmental laws in 2012, it stripped the NEB of its role as the final decision-maker on projects like the Kinder Morgan pipeline and endowed the federal cabinet with that power instead.

In other words, this is a golden opportunity for the federal government to demonstrate the bold leadership it has promised Canadians. If they are to truly deliver on the commitment to evidence-based decision-making and meeting their climate targets set in Paris, Trudeau and his ministers have no choice but to reject the Kinder Morgan project outright.